This article is written by Kaustubh Phalke. As we navigate the contours of this legal provision the article discusses the history of the Section and the misuse that is generally done by governments to muzzle the voices that are against their policies. The article aims to foster a deeper understanding of its implication on individual and societal cohesion by explaining every corner of this Section.

This article has been published by Shashwat Kaushik.

Introduction

“I believe in freedom of speech, but I believe we should also have the right to comment on freedom of speech.”

– Stockwell Day

The sine qua non of democracy lies in freedom of speech and expression. However, this freedom is not absolute and reasonable restrictions are already there with Article 19(2) of the Constitution of India, 1950 (“Constitution”) to prevent any chaos. In line with this, Section 153A of the Indian Penal Code (1860) (hereinafter referred to as “IPC”) attempts to penalize any act intended to promote enmity between two groups on the basis of religion, race, place of birth, residence, language, etc. In February 2023, Pawan Khera, chairman of the media and publicity department of the All India Congress Committee, was arrested for the alleged offence of promoting enmity between different religions, among others.  

There have been numerous instances of application of this Section throughout the year. However, the conviction rate for this offence is comparatively low. As per the report of the National Crime Records Bureau (NCRB), in 2020, 1,804 cases were registered, and the conviction rate is only 20.2%. This trend shows that there has been an increase in the registration of crime by the police, which is quite different from the increase in the crime itself. Thus, it can be clearly seen that there has been gross misuse of the provision, which was simply aimed at preventing class hatred in a diverse country like India. 

In this article, the author will highlight various forms of misuse of Section 153A along with possible solutions to prevent such misuse. 

History of Section 153A IPC

Section 153A IPC was added to the Code in the year 1898 by the Indian Penal Code (Amendment) Act, 1898, seeing the rise in the number of cases of violence arising out of breach of public tranquillity. Before this Section was enacted, ‘promoting class hatred was part of the English law of sedition. 

It was later amended in 1969. The intention behind the amendment of 1969 was to enhance the punishment to make the offence cognizable and to put a strong bar on the offences arising out of the hatred created by people. The punishment was now increased, which may extend up to 3 years or a fine or both. Interestingly, if the offence is committed at a place of worship, the punishment may even extend to five years or a fine or both.

The history of hate speech laws marked from the year 1927. A book was published which put some disparaging remarks on private life of Prophet Mohammad. A case was booked against publisher of Rangila Rasool (Mahashay Rajpal) under Section 153A of IPC. The Punjab and Haryana High Court has acquitted the publisher in this case, and this acquittal was criticised. Ultimately, the publisher was murdered in that year only. After this case, a need for a law against blasphemy was felt and the British government enacted Section 295A in IPC. According to the reports of the select committee, the purpose of enacting this Section was to penalise persons who were involved in wanton vilification and or attacks upon other religions, etc.

Punishment under Section 153A IPC

The purpose of this provision is to punish a person who disturbs peace and harmony in society or promotes enmity amongst different groups. The provision attempts to punish those who engage in promoting any kind of enmity amongst different groups on the basis of religion, caste, race, place of birth or residence, or even language. The provision herein aims to take preventive actions for offences that can lead to disharmony or may disturb public tranquillity. The term ‘hate’ has been nowhere defined in the Indian Penal Code, 1860. For the purpose of Section 153A, is interpreted as any act through speech, writing, or behaviour that attacks religion, ethnicity, nationality, race, colour, descent, gender etc. 

Under this heading, each sub-section and clause of Section 153A has been explained separately. 

Sub-section 1 of Section 153A(1) IPC

Subsection 1 of this provision in its three clauses explains three distinct acts which, if done, would amount to spreading enmity between different classes. 

Clause 1: Acts promoting enmity between groups

Clause (a) of this provision states that any person, who promotes or attempts to promote enmity between different groups as specified in this clause, would be liable under this Section. The act of promoting enmity between different groups can be done by any of the following means- 

• Either by spoken or written words;
• By signs; or
• By visible representations.

For the purpose of this clause, the grounds for promotion of hatred can be religion, race, place of birth, residence, language, caste, community or any other ground. If any person, on the said grounds, promotes disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities it would be counted as a punishable offence. 

Further, it should be noted that this clause would be applicable only if the hearted or disharmony is created between certain specified groups. For instance, this clause would be applicable if the enmity is created between two religious groups or linguistic groups but on the other hand it would not be applicable if enmity is created between different political parties or different households. If the enmity is spread between the following groups, then this Section would be applicable-  

• Religious groups; 
• Racial groups;
• Language groups or regional groups; or 
• castes or community groups.

Clause (b): Acts against the maintenance of harmony of Section 153A(1)

Clause (b) of this provision states that any person who does any act which creates hurdles in the maintenance of harmony between different religious, racial, language or regional groups or castes or communities would be punishable for the same. It also states that if a person tends to disturb or is likely to disturb the public tranquillity, then he shall also be punished in accordance with this Section.

In the recent case of Amish Devgan v Union of India (2021), the Hon’ble Supreme Court interpreted the ingredients of Section 153A, Indian Penal Code 1860. It stated that the term ‘disturb public tranquillity’ must be strictly interpreted in consonance with public order and safety. It should not be interpreted as any normal law and order issue that does not endanger the public interest at large. 

Clause (c): Organizing activities to spread violence of Section 153A(1)

Clause (c) takes into account a person who has organized or participated in the preparation or training of such people who tend to create hatred, criminal force, and violence amongst the following groups:

• Religious group
• Racial group
• Language or regional group
• Caste
• Community

The punishment in the above-mentioned cases shall be imprisonment which may extend up to three years, or with a fine, or with both.

Sub-section (2) of Section 153A IPC

Sub-section (2) of this provision talks about offences committed in the place of worship and their punishment. This subsection does not create any new offence, rather is an aggravated form of the offences discussed in subsection 1. The provision states that the person who commits the above-mentioned offences at such specific place i.e., a place of worship shall be punished with imprisonment which may extend to five years and shall also be liable to a fine.

Punishment for the crime committed under Section 153A IPC

Whosoever commits an act which falls under clause (a), clause (b) or clause(c) of 153A(1) IPC shall be punished with imprisonment for a term which may extend up to three years or fine or both. Since the offence under three clauses of Subsection 1 contains a less severe offence than in Subsection 2, the punishment for the offence in Subsection 2 is more. Subsection 2 states the condition when the offence is committed at the place of worship.  Thus, where the offence is committed at a place of worship, the term of imprisonment may extend up to 5 years or a fine or both.

Essentials for an offence under Section 153A IPC

Certain essential conditions which would constitute an offence under Section 153A are discussed below- 

Specific grounds for offence

The essentials of the provision as discussed under subsection (1) clause (a) of this provision include grounds of commission of offence which are used to spread disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities. These grounds include religion, race, place of birth, residence, language, caste, community or any other ground whatsoever. According to the essentials of this provision, hatred can be spread through spoken or written words, signs visible representations or otherwise. The essentials of this Section include promotion and attempt to promotion of such acts.

The essentials covered under subsection (1) clause (b) includes acts of a person which are prejudicial to the maintenance of harmony between different groups, castes etc and if the acts disturb public tranquillity. 

Subclause (c)  includes a person who has participated in the preparation or training of such people who tend to create hatred between different religious groups and people. It includes activities causing fear or alarm or a feeling of insecurity among members of any religion, race etc. The punishment for the above-mentioned cases shall be imprisonment which may extend up to three years, or with a fine, or with both.

Mens rea

Mens rea is an essential ingredient for the offence of Section 153A. The words, expressions, or gestures should be malafide and intentional in order to make someone liable for an offence under Section 153A of IPC. It is the duty of the prosecution to prove the malafide intention of the accused to cause enmity between different groups of people on the basis of different grounds, religion being one of them.

Promotion of class hatred

The most essential element of this Section is to promote hatred or enmity between several classes. This intention can be inferred from the words used, their effect on the class they are referred to and the state of mind of the two communities at the time of the offence. Every other thing becomes immaterial when the intention to promote hatred is proved.

Place of commission of offence

The essential under sub-section (2) of this provision is about the place of commission of offence, i.e., any place of worship and its punishment. It states that those who commit the same offence at any place of worship or in any assembly that performs religious worship or other religious activities shall be punished with imprisonment which may extend to five years and shall also be liable to a fine.

Nature of offence under Section 153A IPC

The offence committed under Section 153A is cognizable i.e. the police can arrest the person without any prior warrant. The offence is non-bailable and is to be tried by a judicial magistrate of first class.

Features of Section 153A IPC

Maintaining communal harmony

The Section focuses on maintaining communal harmony through penalising acts that promote enmity between different groups on the grounds of religion, race, place of birth, residence, language, etc that may disturb public tranquillity.

Wide scope

The Section covers a wide scope of methods that can be used to disturb public tranquillity. The Section covers direct as well as indirect methods that may disturb public tranquillity. Direct methods include words and expressions, and indirect methods include acts such as aiding in the organising of certain movements that may disturb peace among all.

Specific grounds of offence

Specific grounds of offence such as words (spoken or written), visual representations, and signs with the intention of causing disharmony, hatred, or disturbance among people belonging to different groups, religions, castes, or communities have been mentioned in the Section which draws the scope for the applicability of the Section.

Intention is an essential condition

The intention of the offender in the Section plays an important role in establishing the offence against someone. The prosecution must establish the intention of the accused. There are serval cases where the court has highlighted the importance of intention, i.e., deliberate and malicious intent to constitute an offence under Section 153A. In the recent case of Amish Devgan vs. Union of India, the Supreme Court has stated that an offence under this Section would not be constituted if there was no apparent malicious intent to promote class hatred. 

In the case of PK Chakraverty vs. Emperor (1926), it was held that  “the intention as to whether or not the accused person was promoting enmity is to be collected from the internal evidence of the words themselves”. However, it does not mean that evidence other than internal evidence would be overlooked. There are the cases, for instance, Gopal Vinayak Godse vs. Union Of India and Ors. (1969), where the High Court held a narrower approach and stated that for a person to be presumed to intend the natural consequences of his act showing that the language of the writing is of such a nature that it promotes enmity or hatred will be enough. However, the recent case of Amish Devgan has upheld the earlier broader interpretation where due consideration was given to the ill intention of the accused. 

Maintaining public tranquillity

Public tranquillity refers to the acts or conduct that can disturb peace and harmony in society. These acts can be provoking in nature and may disturb the peace amongst different religious groups of society. The Section focuses on maintaining public tranquillity by penalising the acts that may cause any threat to public tranquillity.

Enhanced punishment for special places

As mentioned earlier, if the offence is committed at the place of worship, the punishment under Section 153A IPC would be enhanced and the person shall be punished with imprisonment which may extend to a term of five years and shall also be liable to a fine.

Misuse of punishment under Section 153A IPC

Section 153A of IPC focuses on maintaining harmony and promoting peace amongst different groups, but many times this provision is used to suppress legitimate issues raised by the people. The following are certain misuses of this provision:

Violation of freedom of expression

The Section focuses on the prevention of enmity between different groups, and the Section is misused to curb the freedom of expression when the person is trying to express his dissent over some custom or tradition of a specific group. The right to freedom of speech and expression is defined under Article 19(1)(a) of the Constitution of India, which gives the right to the citizens to express views and opinions freely. These rights are subject to certain restrictions on the grounds of which are mentioned in Article 19(2). One of the ground on which reasonable restriction can be imposed is public order. Section 153A curbs the right to freedom of speech omn this ground only. However, certain times such a restriction on right to speech is not reasonable enough so as to justify Clause 2 of Article 19. 

There are several cases in which Supreme Court has considered the question whether Section 153A of IPC is voilative of Article 19 (1)(a) of the Constitution. Till now, this Section is not held unconstitutional. In Ramji Lal Modi v. State of UP (1957), the Supreme Court conveyed that even if the law does not deal with public order it could be read to be ‘in the interest of’ public order. The Ramji Lal Modi standard was refined in Superintendent, Central Prison, Fatehgarh v. Dr Ram Manohar Lohia (1960) which is also known as Lohia-I. Here, the Supreme Court found that restrictions ‘made in the interests of public order’ must have a ‘reasonable relation to the object to be achieved’. 

The Section becomes a weapon to muzzle the voices of citizens who raise their voices against the bad customs or traditions of any community. The youth might get discouraged due to the misuse of the Section. Fear of being charged under Section 153A IPC negatively impacts the citizens to raise their voices against wrongs and are compelled to accept the wrongs.

Prejudice in enforcement

This prejudice in the enforcement of the Section results in the misuse of power and ultimately suppressing the voices against the mischiefs. The law enforcement agencies can be biased in enforcing this provision towards a particular group. The Section may be applied to areas where there is no enmity or intention to create any enmity but a mere dispute between two religious or social groups. Many times, because of these conflicts amongst groups, and police officers, acts that are not intended to spread disharmony or hatred are considered to spread the same.

Misinterpretation of terms

Certain terms used in the Section are ambiguous and misinterpreted, such as disharmony and enmity. However, it is to be noted that vague terms are not misused in itself. Rather, taking advantage of different interpretations of the vague terms can be termed as misuse. 

These are open for interpretation and hence can be interpreted in a way to misuse the Section. For example, the word disharmony and the promotion of enmity can be labelled to any act which is intended to dissent from some custom or tradition. 

Prevention of misuse of Section 153A IPC

Effective application of this provision and prevention of misuse of the provision is necessary to uphold the rule of law. The prevention of misuse discusses the solution on how to prevent the misuse of the provision. The following measures can be taken to prevent the misuse of this provision:

Unambiguous definitions

The ambiguity in the Section can be reduced by providing a precise application to prevent the misuse of Section 153A of IPC on certain terminologies acts, words etc. Terms such as disharmony and hatred are misinterpreted and misused against people to take personal revenge arising out of interpersonal conflicts. This could be corrected by judicial review, i.e., the power of the Supreme Court to examine the law and its constitutionality.

Specified criteria for prosecution

These criteria will help in determining if the action is taken in cases only where the genuine intent was to promote enmity. For this three things should be kept in mind i.e. intent, context, and impact. As in the case of Manzar Sayeed Khan vs State Of Maharashtra & Anr (2007), the Apex Court stated that it is the duty of the prosecution to prima facie establish the mens rea of the accused to cause enmity between different classes of people in Section 153A IPC.

In the recent case of Raja Singh Thakur and Ors. Vs. State of Karnataka (2023), the Karnataka High Court held that the proceedings under Section 153A would not continue without necessary sanction under Section 196 CrPC. In this case, the fundamental defect in the prosecution’s story was the absence of sanction. Justice M Nagaprasanna quashed the proceeding against the legislator of Karnataka Raja Singh Thakur and other accused.

Interpretation by the courts

The courts should closely observe cases under Section 153A IPC to prevent the misuse of the Section. Courts must exercise their power of judicial review in a proactive manner. Herein, it is not stated that the court usually does not keenly observe the cases, rather, the court has given serval guidelines so as to curb the ongoing misuse of the provision and miscarriage of justice. For instance, in the case of Arnesh Kumar vs. State of Bihar (2014) the Supreme Court has given a set of guidelines to prevent indiscriminate arrest by the police. Further, in the case of Amish Devgan vs. Union of India, where petitioner (a journalist) has filed a written petition to quash the FIR filed against him under Section 153A when he made a remark against Sufi Saint Moinnuddin Chisthi. The Apex Court though has dismissed the petition because the petitioner has claimed that the FIR should be quashed as were registered in places where no cause of action arose. However, the court has also highlighted that the malice intention is an essential ingredient to constitute an offence under Section 153A.

Creating awareness about 153A IPC

People should be educated about Section 153A of IPC. They should be taught about their fundamental rights and the available judicial remedies for the violation of their rights. This can be done through conducting seminars and lectures, nukkad natak, posters, distributing pamphlets, organising essay writing competitions in educational institutions, etc.

Further, law enforcement agencies could be given proper training through workshops for the applicability of Section 153A IPC. These workshops will help them understand the applicability of the Section.

Periodical review of provision

The loopholes in the legislation should be periodically reviewed and should be made dynamic. After judicial review, they should be changed accordingly and further guidelines must be issued to reduce the scope of misinterpretation and misuse. IPC is, in itself, age-old legislation, and it was formulated according to the circumstances prevalent in British India. To avert any kind of misuse of this provision and to get this provision to clarity in accordance with the present society, the Indian Penal Code, 1860 is being replaced by Bhartiya Nyay Sanhita, 2023. 

Section 153A of IPC, 1860 will soon be replaced by Section 194 of Bharitya Nyay Sanhita, 2023 as the Code is yet to be enforced. A major change in the provision is that electronic communication has been added to the mode of communication of disharmony, hatred, etc.

Comparative study of Section 153A IPC with other provisions

Basis	Section 153A	Section 295	Section 295A
Purpose	Deals with offences promoting enmity between different groups on grounds of religion, race, caste, etc.	Deals with offences intended to destroy, damage, or defilement a place of worship or an object held sacred, with intent to insult the religion of a class of persons.	Deals with offences related to deliberate and malicious acts intended to outrage religious feelings.
Punishment.	Imprisonment may extend up to 3 years or fine or both and if at the place of worship is enhanced up to 5 years and fine.	Imprisonment that may extend up to 2 years or fine or both.	Imprisonment that may extend up to 3 years or fine or both.
Nature of offence.	The offence is cognizable in nature.	The offence is cognizable in nature.	The offence is cognizable in nature.
Bailable or non-bailable offence.	The offence is non-bailable.	The offence is non-bailable.	The offence is non-bailable.
Compoundable or non-compoundable offence.	The offence is non-compoundable, i.e., the out-of-court settlement cannot be done.	The offence is non-compoundable	The offence is non-compoundable

Case laws surrounding Section 153A IPC

Ramji Lal Modi v. State of U.P. (1957)

Facts of the case

In this case, Ramji Lal Modi was the editor, printer, and publisher of a monthly magazine called as ‘Gaurakshak’ which was devoted to cow protection. In 1952, a controversial article was published containing matter regarding the Muslim community that was alleged to spread hatred, enmity, and disharmony. This became the ground for the prosecution of the petitioner. He was charged under Section 153A and Section 295A of the IPC. The Sessions Court of Kanpur acquitted the petitioner of the charge under Section 153A but convicted him under Section 295A. Upon appeal, Allahabad High Court also upheld the ruling of Sessions Court.

Afterwards, the petitioner challenged the constitutionality of Section 295A in the Apex Court. The grounds for challenging Section 295A IPC were that the impugned Section infringed his fundamental right to freedom of speech and expression conferred by Article 19(1)(a) of the Constitution, and was not a law imposing reasonable restrictions on the right in the interests of public order under clause (2) of Article 19, which alone could have afforded a justification for it. 

Issues in the case

The issue in this case pertained to the constitutionality of Section 295-A IPC. 

Judgement of the case

For the issue of contention, i.e. constitutional validity of Section 295A of IPC, the Supreme Court held that this Section is constitutionally valid because it was for the maintenance of public order well within the ambit of Article 19(2). Thus, the constitutionality of Section 153A of IPC was upheld. 

Gopal Vinayak Godse v. The Union of India and Ors. (1971)

Facts of the case

In this case, the author and publisher of a controversial book called “Gandhi-hatya Ani Mee” (Gandhi-assassination And I) challenged an order of the Delhi administration. The order was regarding the forfeiture of this book as per Section 99A of the Code of Criminal Procedure (CrPC). After that, the Constitutionality of both Section 99A of the CrPC and Section 153 of the IPC was challenged.

Issue in the case

Whether Section 99A of CrPC and Section 153A of IPC are constitutional? 

Judgement of the case

Upholding the constitutionality of Section 99A CrPC and 153A IPC, it was held that to charge someone under Section 153A IPC, “one cannot rely on stray, isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning”.

The court further stated that  ‘adherence to the strict path of history is not by itself a complete defence to a charge under Section 153A’. Also, ‘greater the truth, greater the impact of the writing on the minds of its readers, if the writing is otherwise calculated to produce mischief’.

Maulana Azizul Haq Kausar Naquvi v. State (1980)

Facts of the case

In this case, the applicants called into question the validity of the notification dated June 28, 1977. By this notification, the State Government of Uttar Pradesh forfeited the book while exercising its power under Section 95 of the CrPC. The forfeited book is titled “Munaqib-e-Ahle Bait” (In Praise of the Members of the Household of the Holy Prophet). It was claimed by the state government that the said notification would cause disharmony between Shia and Sunni Muslims which in turn would disturb the public tranquillity, and thus it attracts Section 153A of IPC. 

Issues of the case

The issues in the case were whether notification of forfeiture of publication to the government, under Section 95 of CrPC should be quashed.

The following were the points of consideration: 

1) Whether detailed reasons on the basis of which state government’s opinion was formed necessary?

2) Whether “Muavia” is held in high esteem by the Sunni Muslims?

3) Whether the publication of the book (looking at its contents) is punishable under Section 153A IPC

Judgement of the case

The Allahabad High Court, in this judgement, firmly established both that in India and in England, criminality for the offence of blasphemous libel, of criminality under Section 153A of the Indian Penal Code, does not attach to the things said or done but to the manner in which it is said or done. If the words spoken or written are couched in temperate, dignified, and mild language, and do not have the tendency to: insult the feelings or the deepest religious convictions of any section of the people, penal consequences do not follow.

The book does not contain any matter that may be characterised as written in bad taste or couched in offensive or intemperate language, publication of the book cannot be said to be punishable under Section 153A IPC and the notification of the State Government is liable to be quashed.

Bilal Ahmad Kaloo v. State of Andhra Pradesh (1997)

Facts of the case

In this case, the appellant was an active member of a militant group named Al-Jehad. This group aimed to separate Kashmir from the Indian Union. Keeping the same intention in mind, Bilal Ahmad Kaloo who was the appellant in the instant case used to spread hatred amongst the Muslim youth in old Hyderabad and inspired them to join these militant groups and undergo arms training. He was alleged to be brainwashing the Muslims in Hyderabad that Muslims in Kashmir are going through atrocities of the Indian army. After a close investigation by police, he was arrested. The appellant was charged under Sections 124A (sedition), 153A and 505(2) IPC (statements conducing to public mischief), under Sections 3(3), 4(3) and 5 of the Terrorist And Disruptive Activities (Prevention) Act, 1987 and also under Section 25 of the Indian Arms Act,1959.

Issue in the case

Whether the charges against the appellant can be upheld?

Judgement of the case

It was held by the Supreme Court, in this case, that the common feature in Section 153-A and Section 505(2) IPC is the promotion of peace and harmony between different groups and communities. To be charged under these two provisions, there must be at least two different groups. Merely inciting the feelings of one group without any reference to another group or community will not attract these provisions.

Amish Devgan v. Union of India (2021)

Facts of the case

The facts of the case were, that certain remarks were made by journalist Amish Devgan in a live session on a TV news channel. The petitioner, while hosting the debate, made a comment on Pir Hazrat Moinuddin Chishti, also known as Pir Hazrat Khwaja Gareeb Nawaz, who is a well-known saint of the Muslim community as “aakrantak Chishti aya… aakrantak Chishti aya… lootera Chishti aya… uske baad dharam badle”. This meant that the religions changed after the terrorist and robber Pir Hazrat Moinuddin Chishti came, which prima facie conveyed that ‘the Pir Hazrat Moinuddin Chishti is a terrorist and robber. It also conveyed that he used fear and intimidation to convert the Hindus to Islam. Pir was a celebrated saint of the Muslim community who was equally revered by Hindus and it was alleged that the petitioner insulted Pir and thus hurt and incited religious hatred towards Muslims. Resulting which several complaints were filed against him under Section 153-A IPC and various other provisions of IPC.

Issues raised

1. Whether the criminal complaints filed against him should be quashed?
2. Whether his remarks constitute an offence under the Indian Penal Code?

Judgement of the case

The Supreme Court once again highlighted the essential ingredient of the crime such as intent, especially for Section 153A. The court interpreted the meaning of the term ‘public tranquillity’ and stated that the word public tranquillity shall be read in conjunction with ‘public order’ hence the normal issues of law cannot come under the ambit of public tranquillity. The court firmly stated that the misuse of this Section should not be allowed to any extent.

The application for quashing FIR was rejected. His defence of causing slight harm was not entertained. Interim relief was granted based on his cooperation with the police.

Arnesh Kumar v. State of Bihar (2014)

Facts of the case

Arnesh Kumar is the husband of Sweta Kiran. They were married on 1st July 2007. Sweta Kiran, wife of Arnesh Kumar alleged that her mother-in-law and father-in-law demanded a dowry of  8 lakhs along with other valuables such as a car, TV, etc. On complaining the same to her husband, he refused to revoke the demand and threatened to marry another woman. Sweta alleged that she was forcefully thrown out of the home for not fulfilling the demand of dowry.

Arnesh Kumar applied for anticipatory bail to prevent his arrest for the charges alleged by his wife. This application was rejected in Sessions Court and High Court. He applied for a special leave petition in the Supreme Court for the same.

Issues of the case

• The issue in this case was whether Arnesh could apply for anticipatory bail.
• Can a police officer arrest someone in case of a complaint and the person is suspected of a serious offence? 
• What guidelines are to be followed by the law enforcement agencies to make such an arrest? 
• What actions are to be taken in case of misuse of Section 498A IPC by a woman?

Judgement of the case

The Supreme Court restricted the police from making arrests on complaints made under Section 498A IPC. The apex court held that this provision has become a weapon for disgruntled wives who tend to threaten innocent in-laws and husband. Innocent in-laws and husband get arrested based on the complaints, without any strong evidence.

The Apex Court issued certain guidelines on arrest which are popularly known as Arnesh Kumar guidelines. The following guidelines were issued by the apex court:

1. The state governments to direct the police officers to not make arrests in cases of Section 498A IPC unless necessary. They should be directed to follow the procedure mentioned under Section 41, Cr. P.C.
2. The police officers are to be provided with a checklist under Section 41(1)(b)(ii)
3. Police officers are to duly file and furnish the checklist before the magistrate while asking for further detention along with the reason for making the arrest necessary.
4. The Magistrate to authorise detention only after his satisfaction and considering the report of a police officer.
5. The decision not to arrest an accused shall be forwarded within two weeks to the magistrate. The calculation of two weeks would be from the date of institution of the case. The Superintendent of Police of the District will extend the copy of the magistrate recording the reasons for not making an arrest in writing.
6. Notice of appearance to be served to the accused as per Section 41A of Cr.P.C. within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing.
7. The police officers on failure to comply with the directions aforesaid shall be liable for departmental action, and they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction
8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

The aforesaid directions will also be applicable to cases where the offence is punishable with imprisonment for a term that may be less than seven years or which may extend to seven years; whether with or without fine.

Conclusion

India is a country which is known for its diversity, being it in terms of flora and fauna and religions. In such a country with diversity, the differences between groups and religions are pervasive and not a thing to be shocked by. People are given fundamental rights, hence there need to be safeguards as well to protect the misuse of power and fundamental rights as well. Hence, Sections like 153A under IPC are necessary for peace and to maintain public tranquillity and public order. But still, some questions remain unanswered e.g. reasonability factor, essential ingredient of enmity etc. Legislation should focus on stating the scope of enmity and its exceptions.

Frequently Asked Questions (FAQs)

What is the difference between Section 295A and 153A IPC?

Section 295A focuses on punishing offenders who tend to offend any religious group or institution. Whereas, Section 153A penalizes the offence of promoting enmity between two or more different groups.

What is the nature of the offence under Section 153A IPC?

The nature of the offence under Section 153A is a cognizable offence, i.e. the police can arrest the accused without any judicial warrant.

Whether the crime under Section 153A is a bailable offence or a non-bailable offence?

The crime defined under Section 153A is a non-bailable offence. The right to bail here doesn’t exist, and it is upon the discretion of the court to grant bail.

Which court has jurisdiction to try the offence under Section- 153A IPC?

The crime under Section 153A IPC is triable by judicial magistrate first class.

Is intention necessary to constitute an offence under Section- 153A IPC?

Yes, it has been decided in many cases that intention is the most important element to constitute an offence under Section 153A of IPC.

What is the punishment under Section 153A of IPC?

The offender of 153A IPC shall be entitled to three years or fine or both, and where the offence is committed at a place of worship the punishment may extend up to 5 years or fine or both.

References

• https://www.iitk.ac.in/wc/data/IPC_186045.pdf
• https://www.theweek.in/news/india/2022/06/16/why-Section-153a-of-indian-penal-code-is-under-scrutiny.html
• https://indianexpress.com/article/explained/explained-law/section-153a-its-use-and-missue-pawan-khera-arrest-supreme-court-8465400/
• https://ipi.media/why-section-153a-of-indian-penal-code-is-under-scrutiny/
• https://www.latestlaws.com/wp-content/uploads/2018/05/NLUD-Report-on-Hate-Speech-Laws-in-India.pdf